EXHIBIT 10.4
SOI HOLDINGS, INC. 2005 OMNIBUS PLAN
AMENDED AND RESTATED
NONQUALIFIED COMMON STOCK OPTION
AGREEMENT
THIS AMENDED AND RESTATED COMMON
STOCK OPTION AGREEMENT (the “ Agreement ”),
dated as of
, 2007, is made by and between SOI Holdings, Inc., a Delaware
corporation (the “ Company ”), and
(the “ Participant ”).
WHEREAS, the Company has adopted the
SOI Holdings, Inc. 2005 Omnibus Plan (the “ Plan
”), pursuant to which options may be granted to purchase
shares of the Company’s common stock, par value, $0.01 per
share (“ Common Stock ”); and
WHEREAS, effective as of
August 15, 2005, (the “ Date of Grant ”)
the Company and the Participant entered into that certain
Nonqualified Common Stock Option Agreement (the “ Original
Agreement ”) pursuant to which the Company granted the
Participant an option to purchase
shares of Common Stock; and
WHEREAS, the Company and the
Participant have determined to amended and restate the terms and
conditions of the Original Agreement as set forth herein;
NOW, THEREFORE, for and in
consideration of the premises and the covenants of the parties
contained in this Agreement, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto, for themselves, their successors and assigns,
hereby agree as follows:
1.
Grant of Option.
Grant . The Company hereby confirms the grant to the
Participant, as of the Date of Grant, of an option (the “
Option ”) to purchase
shares of Common Stock (such shares of Common Stock, the “
Option Shares ”), on the terms and conditions set
forth in this Agreement and as otherwise provided in the Plan. This
Option is not intended to be an Incentive Stock Option.
2.
Incorporation by Reference, Etc.
The
provisions of the Plan are hereby incorporated herein by reference.
Except as otherwise expressly set forth herein, this Agreement
shall be construed in accordance with the provisions of the Plan
and any capitalized terms not otherwise defined in this Agreement
shall have the definitions set forth in the Plan. The Committee
shall have final authority to interpret and construe the Plan and
this Agreement and to make any and all determinations under them,
and its decision shall be binding and conclusive upon the
Participant and his legal representative in respect of any
questions arising under the Plan or this Agreement.
3.
Terms and Conditions
(a)
Option Price . The price at which the Participant shall be
entitled to purchase the Option Shares upon the exercise of all or
any portion of this Option shall be $0.74 per share.
(b)
Expiration Date . Subject to Section 3(d) hereof, the Option
shall expire at 11:59 p.m. Eastern Time on the day immediately
preceding the tenth anniversary of the Date of Grant.
(c)
Exercisability of the Option.
(i)
The exercise of the Option shall be subject to the
Participant’s having executed (if he or she is not already a
party thereto) the Stockholders Agreement by and among the Company,
Trumpet Investors L.P., a Delaware limited partnership, Trumpet
SBIC Partners, L.P., a Delaware Limited partnership, Regions Bank,
a bank chartered under the laws of the State of Alabama and the
stockholders who are party thereto, dated as of August 3, 2005
(the “ Stockholders Agreement ”).
(ii)
Except as may otherwise be provided herein, pursuant to the terms
of the Original Agreement: (i) as of the date of this
Agreement, the Option is vested and exercisable as to
of the Option Shares and (ii) the Option was scheduled to vest
and become exercisable with respect to the remaining
Option Shares,
on August 15, 2007 and
on August 15, 2008 (the “ Original Vesting
Schedule ”). For the purposes of this Agreement, the term
“ Accelerated Vested Option Share ” shall
include any Option Share with respect to which the vesting was
accelerated by this Agreement ahead of the Original Vesting
Schedule; provided that each such Option Share shall no longer be
an Accelerated Vested Option Share upon the date that such Option
Share would have vested in accordance with the Original Vesting
Schedule. As of the date of this Agreement the Option is vested and
exercisable as to all of the Option Shares.
(iii)
The Option may be exercised only by written notice, substantially
in the form attached hereto as Exhibit A (or a successor form
provided by the Committee) delivered in person or by mail in
accordance with Section 6(a) hereof and accompanied by payment
therefor. The purchase price of the Option Shares shall be paid by
the Participant to the Company (A) by certified check,
(B) by transferring to the Company shares of Common Stock as
described in Section 7(b) of the Plan, (C) following an
initial public offering by the Company of shares of Common Stock
registered under the Securities Act of 1933, as amended (an “
Initial Offering ”), by a “cashless
exercise” procedure if and in the manner approved by the
Committee or (D) by any other method approved by the Committee
in writing. If requested by the Committee, the Participant shall
promptly deliver his copy of this Agreement evidencing the Option
to the Secretary of the Company who shall endorse thereon a
notation of such exercise and promptly return such Agreement to the
Participant. The Option may be exercised only for whole
shares.
(d)
Termination of Option . In the event of a termination of
Participant’s employment with the Company, the Option shall
remain exercisable by the Participant, provided, that such Option
shall expire upon the earliest to occur of (i) the tenth
anniversary of the Date of Grant, (ii) the date of the
termination of the Participant’s employment with the Company
and its Affiliates either (x) by the Company with
“Cause” or (y) by the Participant other than for
“Good Reason” (iii) the date sixty (60) days
following the date of termination of the Participant’s
employment with the Company and its Affiliates by the Company
without Cause or by the Participant for Good Reason; (iv) the
first anniversary of the termination of the
Participant’s
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employment with the Company and its Affiliates (A) by reason
of the Participant’s death, or (B) by the Company on
account of Disability; or (v) as otherwise described in
Section 12 of the Plan.
“Cause”
shall be deemed to occur at the time the Company gives written
notice to the Participant that Participant has participated in any
of the following conduct while an employee of the Company:
(1) willful and knowing dishonesty in communication of any
kind on any material subject for any purpose either to the Company
or to any person or entity for or on behalf of the Company;
(2) theft, embezzlement, false entries on records,
misapplication of funds or property, misappropriation of any asset,
and conduct resulting in conversion of any kind, or any actual or
constructive fraud; (3) imparting confidential information in
violation of the Company’s policies; (4) gross neglect
of duty or willful refusal to perform his duties of employment at
the Company; (5) conduct involving moral turpitude which
results in public disgrace for which there is probable cause to
believe that, if criminally prosecuted, such conduct would be
adjudged felonious; or (6) receiving, while an employee of the
Company, compensation, income, or a future interest in or future
entitlement to compensation, or income from any person or entity
who or which is engaged in the same or substantially the same
business as the Company in the same product, service or
geographical market, except stock dividends and/or gains from
passive investments in financial institutions or professional
employer organizations by Participant made in the ordinary course
of business, as part of the Participant’s investment
portfolio.
“Good
Reason” shall mean: (1) any reduction in
Participant’s base salary or target bonus opportunity; or
(2) any material reduction in benefits to which Participant
shall be entitled under the plans and programs of the Company
(unless such reduction is equally applicable to all executives of
the Company at the same level as Participant).
“Disability”
shall mean the Participant’s inability, by reason of mental
or physical impairment, to perform the essential functions of his
position with the Company, with or without reasonable
accommodation, for a period of twelve (12) consecutive work
weeks, or for intermittent periods totaling in the aggregate, more
than twelve (12) work weeks in any twelve (12) month
period.
(e)
Compliance with Legal Requirements . The granting and
exercising of the Option, and any other obligations of the Company
under this Agreement shall be subject to all applicable federal and
state laws, rules and regulations and to such approvals by any
regulatory or governmental agency as may be required. The
Committee, in its sole discretion, may postpone the issuance or
delivery of Option Shares as the Committee may consider appropriate
and may require the Participant to make such representations and
furnish such information as it may consider appropriate in
connection with the issuance or delivery of Option Shares in
compliance with applicable laws, rules and regulations (in addition
to those representations required pursuant to
Section 5).
(f)
Company Call Option . Any Option Shares purchased by the
Participant through the exercise of the Option shall be subject to
the Company’s Call Option as follows:
(i)
Other than as set forth in the second sentence of
Section 3(f)(vii), upon and following the termination of the
Participant’s employment with the
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Company for any
reason (or no reason), the Company shall have the right and option
(the “ Call Option ”), but not the obligation,
to purchase from the Participant (or his estate or permitted
transferees) any or all of the Option Shares (whether purchased
pursuant to the exercise of the Option prior to, on or following
such termination or of employment). The purchase price (the “
Call Price ”) of the Option Shares subject to purchase
under this provision (the “ Called Shares ”)
shall be (x) in the case of a termination of the
Participant’s employment by the Company for Cause, the lower
of the purchase price of such Called Shares, or the Fair Market
Value of such Called Shares on the date of the applicable
“Call Notice” (as defined below) and (y) in the
case of any other termination of employment, the Fa
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